County clerks at center of same-sex marriage issue

Dane County Clerk Scott McDonell thinks Attorney General J.B. Van Hollen needs to ease off, on talk of prosecution for same-sex couples who apply for marriage licenses. McDonell – a Democrat – responded Thursday to the Republican attorney general’s assertion that same-sex couples and the clerks who issued their marriage licenses, could face prosecution.

“It’s part of the statute where if you knowingly issue a marriage license, essentially illegally, then you can be criminally liable,” McDonell said. “But part of that is that you have to knowingly violate the law.”

Van Hollen told the Milwaukee Journal Sentinel that while he did not believe couples could be prosecuted, county clerks risked having that happen to them. McDonell said the advice he’s gotten is that the U.S. Constitution trumps the state constitution, and that the state’s ban on same-sex unions is invalidated.

“This is kind of basic, first year law school stuff, and it’s a little bit disappointing that the attorney general is trying to scare couples,” McDonell said.

U.S. District Judge Barbara Crabb, who last week declared that Wisconsin’s prohibition on same-sex marriages violated the U.S. Constitution’s equal protection clause, will hold a hearing Friday afternoon that’s expected to further clarify the issue. Also, the Associated Press reported Thursday that only 9 of the state’s 72 counties were not issuing licenses to same-sex couples.

Governor Scott Walker, who had not commented on the issue but is on record as opposing same-sex marriage, was queried by reporters in Oak Creek on Thursday. “It really doesn’t matter what I think now. It’s in the constitution and . . . if it’s in the constitution, the governor doesn’t have a say on that,” Walker said.